CHESTER WROBEL V BERNICE WROBEL
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STATE OF MICHIGAN
COURT OF APPEALS
CHESTER WROBEL,
UNPUBLISHED
January 25, 2000
Plaintiff-Appellee,
v
No. 210919
Macomb Circuit Court
LC No. 97-001297-DO
BERNICE WROBEL,
Defendant-Appellant.
Before: White, P.J., and Hood and Jansen, JJ.
JANSEN, J. (concurring in part and dissenting in part).
I respectfully dissent from the majority’s affirmance of the trial court’s award of the property to
plaintiff and would hold that the trial court could not sever defendant’s survivorship interest because the
parties owned the property as joint tenants with full rights of survivorship.
Generally, all jointly held property is subject to being partitioned. MCL 600.3304; MSA
27A.3304. However, as defendant points out, there is a significant distinction between a joint tenancy
and a joint tenancy with full rights of survivorship.1 In fact, these two distinct joint tenancies have long
been recognized in Michigan. See Schulz v Brohl, 116 Mich 603; 74 NW 1012 (1898); Finch v
Haynes, 144 Mich 352; 107 NW 910 (1906); Jones v Snyder, 218 Mich 446; 188 NW 505 (1922);
Ames v Cheyne, 290 Mich 215; 287 NW 439 (1939); Rowerdink v Carothers, 334 Mich 454; 54
NW2d 715 (1952); Ballard v Wilson, 364 Mich 479; 110 NW2d 751 (1961); Mannausa v
Mannausa, 374 Mich 6; 130 NW2d 900 (1964); Albro v Allen, 434 Mich 271, 276; 454 NW2d 85
(1990). Our Supreme Court, in Albro, id. at 274-276 stated:
The principal characteristic of the joint tenancy is the right of survivorship. Upon the
death of one joint tenant, the surviving tenant or tenants take the whole estate. Tiffany,
supra, § 419, p 198. In the standard joint tenancy, the right of survivorship may be
destroyed by severance of the joint tenancy. Id., p 199. The joint tenancy may be
severed by an act of the parties, by conveyance by either party, or by levy and sale on
an execution against one of the parties. Smith v Smith, 290 Mich 143; 287 NW 411
(1930). If one joint tenant conveys his interest to a third party, then the remaining joint
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tenant and the grantee become tenants in common, thus destroying the element of
survivorship.
***
At the crux of this case is the distinction between the “joint tenancy will full
rights of survivorship” and the ordinary joint tenancy. The “joint tenancy with full rights
of survivorship” is comprised of a joint life estate with dual contingent remainders. See
1 Cameron, Michigan Real Property Law, §9.11, p 274. While the survivorship
feature of the ordinary joint tenancy may be defeated by the act of a cotenant, the dual
contingent remainders of the “joint tenancy with full rights of survivorship” are
indestructible. A cotenant’s contingent remainder cannot be destroyed by an act of the
other cotenant.
The Court in Albro went on to consider the effect of a conveyance on the cotenant’s
survivorship rights. “Generally, it is recognized that where the interest held is not an ordinary joint
tenancy, but instead a joint life estate with dual contingent remainders, the right of survivorship cannot be
affected by a conveyance of the life estate.” Id. at 278. The significant holding of Albro is that the
contingent remainder of either cotenant may not be destroyed by any act of the other. Although either
cotenant may transfer his or her interest in the joint life estate, such a transfer has no effect on the
contingent remainders; thus, upon the death of either of the original cotenants, the other cotenant, or any
person to whom the contingent remainder has been transferred, takes the whole estate. Id. at 287.
The trial court in the present case, however, found that MCL 552.102; MSA 25.132 allowed it
to sever the survivorship interest upon the divorce. That statute provides:
Every husband and wife owning real estate as joint tenants or as tenants by entireties
shall, upon being divorced, become tenants in common of such real estate, unless the
ownership thereof is otherwise determined by the decree of divorce.
I disagree with the trial court and the majority because a plain reading of the statute does not lead to the
conclusion that a joint tenancy with full rights of survivorship may be severed when a husband and wife
are divorced. The statute speaks only to a joint tenancy and a tenancy by the entirety. As the Supreme
Court in Albro carefully delineated, a joint tenancy and a joint tenancy with full rights of survivorship are
wholly different joint tenancies. While the ordinary joint tenancy is destructible by an act of the parties,
the dual contingent remainder of a joint tenancy with full rights of survivorship is indestructible. Because
the statute refers only to a joint tenancy, but not to a joint tenancy with full rights of survivorship, I find
that the statute does not apply to a joint tenancy with full rights of survivorship.
Further support for my position is also found in this Court’s decision in Snover v Snover, 199
Mich App 627; 502 NW2d 370 (1993). There, Mayland Snover executed a quitclaim deed to himself
(a single man) and William and Nancy Snover (husband and wife) as joint tenants with full rights of
survivorship and not as tenants in common. William and Nancy Snover, the plaintiffs, were Mayland’s
son and daughter-in-law. Approximately eleven years later, Mayland signed a quitclaim deed conveying
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the property to himself and Gladys Snover, husband and wife. When Mayland died a few months later,
plaintiffs brought an action seeking to evict Gladys, the defendant, from the premises. This Court held
that the language in the original deed created an indestructible joint tenancy among all the named
grantees, whose interest in the property was thereafter limited to a personal life estate with a contingent
remainder. Id. at 629. This Court reiterated the rule that a conveyance by any of the grantees does not
operate to convey more than that interest or in any way diminish the contingent remainder of the named
joint tenants. Id. Importantly, this Court stated that such a construction is not altered when two of the
grantees were married. Id. Thus, the contingent remainder of the named joint tenants will full rights of
survivorship, William and Nancy Snover, was indestructible and they were entitled to the property.
Further, the maxim expressio unius est exclusio alterius—the express mention in a statute of
one thing implies the exclusion of other similar things—applies to this case. Bradley v Saranac
Community Schools Bd of Ed, 455 Mich 285, 298; 565 NW2d 650 (1997). Here, the Legislature
explicitly stated that a joint tenancy or tenancy by the entirety is to become a tenancy in common upon a
divorce, unless otherwise expressed in the judgment of divorce. The Legislature made no mention of a
joint tenancy with full rights of survivorship, a long recognized type of tenancy in this jurisdiction. Thus,
the statute should not be applied to a joint tenancy with full rights of survivorship in light of the clear and
unambiguous terms of the statute. MCL 552.102; MSA 25.132 does not allow a court to sever a
cotenant’s contingent remainder interest in the property where the deed created a joint tenancy with full
rights of survivorship.
Additionally, the Legislature is “deemed to act with an understanding of common law in
existence before the legislation was enacted” Nation v W D E Electric Co, 454 Mich 489, 494; 563
NW2d 233 (1997). Where there is doubt regarding the meaning of a statute, it is to be given effect
which makes the least rather than the most change in the common law. Id. It is presumed that the
Legislature is familiar with the principles of statutory construction. Id. at 494-495. Because contingent
remainders are not subject to partition, and because a joint tenancy with full rights of survivorship is not
expressly stated in MCL 552.102; MSA 25.132, I do not believe that the statute destroys defendant’s
interest in the property.
In the present case, defendant had an indestructible contingent remainder to the property and
MCL 552.102; MSA 25.132 did not in any way diminish that interest. As noted by the Court in Albro,
supra at 284-285, contingent remainders are not subject to partition because they are not possessory
estates. See also MCL 600.3308; MSA 27A.3308. Thus, only plaintiff’s life estate to the property
was subject to partition. Upon plaintiff’s death, the entire estate should have reverted to defendant as
the joint tenant with full rights of survivorship. I would, therefore, reverse the trial court’s ruling severing
defendant’s survivorship interest, creating a tenancy in common, and awarding the entire property to
plaintiff. Defendant’s survivorship interest could not be destroyed.
I would reverse the trial court’s ruling severing defendant’s survivorship interest in the property,
creating a tenancy in common, and awarding the entire property to plaintiff. Defendant’s survivorship
interest could not be severed, thus, I would remand to the trial court to award the property to defendant
in light of plaintiff’s death.
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I concur with the majority’s ruling regarding award of the joint bank account.
/s/ Kathleen Jansen
1
For a good review of the distinction between a joint tenancy with full right of survivorship and other
joint tenancies, see Cooper, Continuing Problems with Michigan’s Joint Tenancy ‘with Right of
Survivorship,’ 78 Michigan Bar J 966 (September 1999).
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